Jian Huan Situ v. Investment Art Management, Inc.

Affirmed and Memorandum Opinion filed August 13, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00669-CV

JIAN HUAN SITU, Appellant

V.

INVESTMENT ART MANAGEMENT, INC., Appellee

On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2021-02260

MEMORANDUM OPINION

A landlord sued a commercial tenant for breach of contract and attorney’s
fees. The tenant answered with a general denial and an affirmative defense. The
landlord moved for summary judgment, seeking a traditional summary judgment on
its breach-of-contract and attorney’s-fee claims and a no-evidence summary
judgment on the tenant’s affirmative defense. The tenant amended her answer twice,
abandoning her previously pleaded affirmative defense and alleging several other
affirmative defenses. However, the tenant otherwise did not respond to the
summary-judgment motion. The trial court granted the landlord’s motion, awarding
the landlord damages and attorney’s fees on its breach-of-contract claim, as well as
conditional appellate attorney’s fees.

The tenant presents a single issue for our review: whether the trial court erred
in granting summary judgment because her amended answers, filed subsequent to
the landlord’s summary-judgment motion, rendered the summary-judgment motion
moot. We affirm.

Background

Investment Art Management, Inc., as landlord, sued appellant Jian Huan Situ
for breach of contract and attorney’s fees in January 2021. Situ answered later that
month, asserting a general denial and the affirmative defense of failure to mitigate
damages.

After several trial continuances, in May 2023, Investment Art filed a hybrid
summary-judgment motion, seeking a traditional summary judgment on its breach-
of-contract and attorney’s-fee claims and a no-evidence summary judgment on
Situ’s failure-to-mitigate affirmative defense, and attached proof of its claims. Later
that month, Situ filed an amended answer, and in June 2023, Situ filed a second
amended answer, omitting her failure-to-mitigate affirmative defense. She
additionally listed as “affirmative defenses” the following:

1. Defendant denies that all conditions precedent to a right of
recovery have been satisfied or alleged.
2. Plaintiff’s claims are barred and any alleged failure to perform
by Defendant is excused because one or more material
obligations of the subject contact and lease have not been
satisfied by Plaintiff and no theft occurred.
3. Plaintiff’s damages, if any, were proximately caused by the act,
omissions or breaches of other persons and/or entities and the

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acts, omissions or breaches were intervening and superseding
causes of Plaintiff’s alleged damages.
4. Defendant denies that a legally binding contract exists between
Plaintiff and Defendant.
5. If in fact a legally binding contract exists between the parties,
Defendant made improvements to the subject property which
more than offset the amount of rent being sought by Plaintiff.

Situ did not file a written response to Investment Art’s summary-judgment
motion. The trial court granted Investment Art’s motion in August 2023, awarding
Investment Art $133,882.98 in damages and $9,307.50 in attorney’s fees, as well as
conditional appellate attorney’s fees. The order expressly states it is “final and
appealable and disposes of all claims.”

Situ timely appealed.

Analysis

Situ presents a single issue: whether the trial court erred in granting summary
judgment in Investment Art’s favor because the filing of her amended answers
rendered Investment Art’s previously filed summary-judgment motion “moot.” 1

“We review summary judgments de novo.” Tex. Workforce Comm’n v.
Wichita County, 548 S.W.3d 489, 492 (Tex. 2018). In doing so, “we take as true all

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Other than reciting the summary-judgment standards of review, Situ’s entire argument in
support of her issue is as follows:
Appellant’s contention is that, in the due order of pleadings, Appellant’s Amended
Answer as well as her Second Amended Answer were filed subsequent to
Appellee’s MSJ and, as such, rendered Appellee’s MSJ moot. As such, the Trial
Court was not allowed to proceed with rendering the Final Summary Judgment.
Situ provides no argument or authority in support of this brief, conclusory assertion. Thus, we
could overrule her issue based on briefing waiver. See Tex. R. App. P. 38.1(i) (“The [appellant’s]
brief must contain a clear and concise argument with the contentions made, with appropriate
citations to authorities and to the record.”); Harrison v. Reiner, 607 S.W.3d 450, 468 (Tex. App.—
Houston [14th Dist.] 2020, pet. denied). We will address the issue nonetheless.

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evidence favorable to the nonmovant and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.” Dall. Morning News, Inc. v. Tatum,
554 S.W.3d 614, 624 (Tex. 2018) (quoting Exxon Mobil Corp. v. Rincones, 520
S.W.3d 572, 579 (Tex. 2017)). “Summary judgment is proper when no genuine
issues of material fact exist and the movant is entitled to judgment as a matter of
law.” Wichita County, 548 S.W.3d at 492.

When, as here, a plaintiff moves for summary judgment on its affirmative
claim, it must conclusively prove all elements of its cause of action as a matter of
law. Universal MRI & Diagnostics, Inc. v. Med. Lien Mgmt. Inc., 497 S.W.3d 653,
658 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Once a movant
establishes its right to summary judgment as a matter of law, the burden shifts to the
nonmovant to present evidence raising a genuine issue of material fact. Id. This
shifting burden includes the obligation for a defendant to raise a genuine issue of
material fact on each element of any affirmative defense that might have prevented
the trial court from rendering judgment on the plaintiff’s claim. See Nwokenwo v.
JP Morgan Case Bank, N.A., No. 14-22-00001-CV, 2023 WL 3115697, at *11 (Tex.
App.—Houston [14th Dist.] Apr. 27, 2023, no pet.) (mem. op.) (citing Baptist Mem’l
Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998); Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex. 1984)).

A plaintiff moving for summary judgment is not under any obligation to
negate affirmative defenses. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see
Woodside v. Woodside, 154 S.W.3d 688, 691 (Tex. App.—El Paso 2004, no pet.).
An affirmative defense prevents the granting of a summary judgment for the plaintiff
on its own claim only if each element of the affirmative defense is supported by
summary-judgment evidence. Tesoro Petroleum, 106 S.W.3d at 124. Accordingly,

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a party raising an affirmative defense in opposition to a summary-judgment motion
must either (1) present a disputed fact issue on the opposing party’s failure to satisfy
its own summary-judgment burden of proof or (2) establish the existence of a fact
issue on each element of his affirmative defense. Id.; see Woodside, 154 S.W.3d at
691-92.

On appeal, Situ does not challenge either Investment Art’s evidence that Situ
breached the lease agreement or its evidence of attorney’s fees. Nor did Situ file a
summary-judgment response or present any evidence in support of her affirmative
defenses. Rather, Situ urges that her amended answers, standing alone, rendered
Investment Art’s previously filed summary-judgment motion moot. We disagree.

Investment Art presented sufficient proof that it was entitled to judgment as a
matter of law on its contract and attorney’s-fee claims; thus, to defeat Investment
Art’s entitlement to summary judgment, Situ was obliged to file a response opposing
the summary-judgment motion and present proof that a fact issue existed. See Tex.
R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for
reversal.”) 2; Dubois v. Harris County, 866 S.W.2d 787, 790 (Tex. App.—Houston
[14th Dist.] 1993, no writ); see also Unifund CCR Partners v. Weaver, 262 S.W.3d
796, 797-98 (Tex. 2008) (“[A] party who fails to expressly present to the trial court
any written response in opposition to the motion for summary judgment waives the
right to raise any arguments or issues post-judgment.”); Nwokenkwo, 2023 WL
3115697, at *11; Santos v. Yellowfin Loan Servicing Corp., No. 14-21-00151-CV,
2022 WL 2678846, at *6 n.5 (Tex. App.—Houston [14th Dist.] July 12, 2022, pet.

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“The term ‘answer’ in the context of the rule refers to an answer to the motion, not an
answer generally filed in response to a petition.” City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 677 (Tex. 1979).

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denied) (mem. op.) (noting that a defendant may respond to a plaintiff’s summary-
judgment motion by raising a fact issue about its defense); Thomas v. Lake Cove
Cmty. Ass’n, Inc., No. 14-13-00173-CV, 2014 WL 1004525, at *4 (Tex. App.—
Houston [14th Dist.] Mar. 13, 2014, pet. denied) (mem. op.) (“A nonmovant’s
response to a motion for summary judgment must present fact issues in the form of
proper summary judgment proof.”). “If [Situ] sought to raise a fact issue, the place
to do so was in the opposition to the summary judgment through competent summary
judgment proof, not in an amended [pleading] filed after the motion for summary
judgment was filed.” Dubois, 866 S.W.2d at 790; see also Baker v. John Peter Smith
Hosp., Inc., 803 S.W.2d 454, 457 (Tex. App.—Fort Worth 1991, writ denied); Feller
v. Sw. Bell Tel. Co., 581 S.W.2d 775, 776 (Tex. App.—Houston [14th Dist.] 1979,
no writ).

A party cannot rely on its own pleaded allegations as evidence of facts to
oppose a summary-judgment motion. Regency Field Servs., LLC v. Swift Energy
Operating, LLC, 622 S.W.3d 807, 819 (Tex. 2021). Instead, the “nonmoving party
is required to make some response to the motion for summary judgment, and in that
response must bring fact issues to the attention of the trial court as a predicate to
relying on those issues on appeal as grounds for reversal.” Feller, 581 S.W.2d at
776; see also Tesoro Petroleum, 106 S.W.3d at 124 (explaining that if party raising
affirmative defense wants to avoid summary judgment against it, it bears the burden
of raising a fact issue concerning that defense); cf. Baker, 803 S.W.2d at 457 (“It is
not a sufficient response to a motion for summary judgment to file an amended
petition after the motion for summary judgment has been filed.”).

In short, because Situ failed to raise a fact issue showing why summary
judgment was not proper in the face of Investment Art’s competent summary-
judgment proof, we overrule her sole appellate issue.

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Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.

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